MSPB: How the credibility of witnesses can affect your MSPB appeal.

October 31, 2009
By
The Law Offices of Eric L. Pines, PLLC

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In any Merit Systems Protection Board (MSPB) hearing, there is invariably
testimony from the Agency’s and the Appellant’s witnesses
that is not entirely consistent. Though sometimes this may be the result
of a witness being untruthful, most times this a purely natural phenomena.
Reasonable people can observe the same occurrences from different perspectives,
memories affect recollection of incidents, and sometimes a witness’s
bias may affect how they perceive an incident.

How, then, does the MSPB Administrative Judge decide which version is more
credible? In 1987, the Board issued its decision in Hillen which lays
out the factors that the MSPB Administrative Judge must weigh in considering
different testimony from different witnesses. Hillen v. Dept. of the Army,
35 MSPR 453 (1987).

Hillen tells us that to resolve credibility issues, an Administrative Judge must:

1) Identify the factual question in dispute

2) Summarize all of the evidence on each disputed question of fact

3) State which version the Administrative Judge believes, and

4) Explain in detail why the chosen version was more credible than the
other version(s).

To effectively achieve the fourth step, explaining in detail why the version
chosen was more credible than other versions, the Administrative Judge
will consider numerous factors, such as:

1) the witnesses opportunity and capacity to observe the event or act in question;

2) the witnesses character

3) any prior inconsistent statement by the witness

4) the witness’s bias or lack of bias

5) the consistency of the witness’s version with other evidence (or
whether the witness’s version is contradicted by other evidence)

6) the inherent improbability of the witness’s version of the events, and

7) the witness’s demeanor while testifying.

Hillen is one of the handful of “must-read” decisions for any
attorney, pro-se Appellant, or non-attorney representative representing
an Appellant before the Merit Systems Protection Board (MSPB). A link
to the article on the MSPB website is provided by clicking here.

No post on this website is legal advice, is meant to be legal advice, and
certainly does not serve as a substitute for legal advice. Information
is power, and we are providing this information to give you, the federal
employee, with some power. This information is not widely or easily accessible
to Federal Employees.

If you are a Federal Employee, and would like to speak with a lawyer about
your appeal to the Merit Systems Protection Board (MSPB), or if you would
like to discuss legal representation with an attorney experienced practicing
before the MSPB), contact the Law Office of Eric L. Pines, PLLC.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.